The Fair Debt Collection Practices Act (FDCPA) is a federal law that was created to protect consumers from many forms of debt collection abuse.
The FDCPA allows a consumer to recover their actual damages, statutory damages of up to $1,000 and attorney’s fees and costs. While this is certainly a modest amount, debt collectors who violate the law are at risk of incurring significant costs to defend the case, and losing the case would add much more to the bill. The more they get sued, the more that helps consumers, and hurts the debt collector’s bottom line. As a consumer, you should not hesitate to protect yourself from these practices and exercise your rights under the FDCPA.
Who is Covered?
The consumer: any person who owes or is alleged to owe a consumer debt.
Debt collectors: according to the FDCPA, a debt collector is any person, other than the creditor, who regularly collects debts owed to others and includes attorneys who regularly collect debts.
Covered debts: debts that are primarily for personal, family, or household purposes are covered under the FDCPA. Alimony, child support, fines and tort claims are not considered debts within the meaning of the FDCPA.
Debt Collector Communication
A debt collector may communicate with you by mail, in person, by telephone or telegram. A debt collector cannot contact you at times or in places that they know are inconvenient for you, such as at your place of work, if your employer prohibits it, or during daytime sleep hours if you work nights. A debt collector cannot contact you before 8:00 a.m. or after 9:00 p.m.
If you send a written demand that the debt collector stop contacting you, he must stop contact immediately, but may send one last communication advising that they intend to take a specific action against you, such as filing a lawsuit.
If you have attorney representation relative to the debt (a consumer rights attorney, bankruptcy attorney or family attorney), the debt collector cannot communicate with you except through your lawyer.
A debt collector cannot contact any third party about your debt. This means that he cannot call your employer or neighbor about the debt. Debt collectors are not allowed to tell anyone but you and your attorney that you owe the debt.
Debt collectors have a right to contact others (once) for the sole purpose of locating you. Debt collectors are not permitted to ask neighbors or others to give you messages, or tell them they are attempting to collect a debt from you.
Within five days after you are first contacted, a debt collector must send you a “validation notice” containing the following information:
- The amount of the debt
- The name of the creditor to whom the debt is owed
- A statement that unless you dispute the validity of the debt, or any portion of it, within 30 days after receipt of the notice, the debt will be assumed to be valid by the debt collector
- A statement that if you notify the debt collector in writing within the 30-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against you and a copy of such verification or judgment will be mailed to the consumer by the debt collector
- A statement that, upon the consumer’s written request within the 30-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor
- Finally, a statement that the communication is from a debt collector attempting to collect a debt and that any information obtained will be used for that purpose
Each debt collector must provide a 30-day validation notice, even if a previous debt collector has already given such notice.
If you dispute a debt in writing within the 30-day validation period, a debt collector cannot continue to collect on the debt until they have sent you proof of the debt or a copy of the judgment.
Actions Prohibited by the FDCPA
A debt collector may not use any language, communication or conduct to harass, oppress, or abuse any person. This includes:
- Threatening violence or harm to the person, property, or reputation of another person
- Threatening to advertise or publish information about unpaid debts, except for information provided to credit bureaus
- Use of obscene or profane language
- Repeated use the telephone to annoy someone
- Failure to properly identify himself during the phone call or other communication
False and Misleading Statements
A debt collector may not make false or misleading statements. This includes:
- Falsely stating or implying that they are a government employee or representative
- Falsely stating or implying that they are an attorney
- Falsely implying that you have committed a crime by not paying the debt
- Misrepresenting the character, amount, or legal status of the debt
- Statements that you will be arrested if you do not pay the debt
- Statements that the collector will seize, garnish, attach, or sell your property or wages (unless the collector intends to do so and has the right to do so)
- Statements that the collector will take some action that is illegal, or that they do not intend to take
A debt collector may not use deception when trying to collect a debt. Examples of deception include:
- Sending you something that looks like an official document from a court or government agency, unless it is a an actual court or government document
- Giving false credit information about you to anyone
- Using a false name, unless such a name is authorized by state law and registered as required
A debt collector may not treat you unfairly in attempting to collect a debt. Debt collectors may not:
- Collect an amount greater than the debt, unless allowed by law
- Deposit a post-dated check more than 5 days before the date on the check, without giving notice of the intention to deposit it early
- Solicit a post-dated check in order threaten criminal prosecution
- Take or threaten to take your property unless this can be done legally, including wrongful repossession of your vehicle
- Contact you by postcard
After a Violation – File Suit Within One Year
You have the right to sue for a violation of the FDCPA within one (1) year of the date the illegal act occurred. If you do not bring a lawsuit within one year of the violation, your claim will be barred by the statute of limitations. If you win your lawsuit, you may recover money for losses you incurred, statutory damages of up to $1,000, attorney’s fees and costs.
Rosenthal Federal Fair Debt Collections Practices Act (RFDCPA)
As a consumer in California, you also have a right to sue a creditor or debt collector who violates your rights under this state law. These damages are in addition to any damages you would receive under the FDCPA, described above. The RFDCPA allows a consumer to recover actual damages, statutory damages up to $1,000 plus attorney’s fees and costs.
Unlike the FDCPA, California’s debt collection statute applies to original creditors in addition to debt collectors.
The world is often unfair, but sometimes, you can and should fight back. If you have been subjected to any of these illegal practices, contact me for a free phone consultation.
Content derived from Consumer Law Center and used under Creative Commons license.